DURHAM — A DWI death can no longer be charged as first-degree murder. The stateSupreme Courtruled Thursday that the so-called "felony murder rule" does not apply to drunk driving cases.

The ruling will likely result in the retrial of Timothy Blackwell of Durham who was convicted of killing a girl in a drunk driving accident.

Blackwell was the second person in the state to be convicted of first-degree murder for causing a fatal DWI car accident. He was drunk and high on heroin when he smashed into the Dail family's van in 1997, killing 4-year-old Megan.

At his trial, Blackwell's attorney argued the tragedy was an accident. There was no evidence to indicate there was any intent to kill or injury any of the victims. The state Supreme Court ultimately agreed.

"The Supreme Court clearly said that the maximum that a person in this situation could be tried would be second-degree murder," says Blackwell's defense attorney, Robert Brown.

During the trial, the prosecutor argued that Blackwell was a habitual drunk driver. He was convicted of DWI seven times before the fatal accident.

But the Supreme Court ruled that including negligence as a basis for first-degree murder opened the possibility that anyone involved in a fatal car accident could face first-degree murder charges.

Blackwell's case was sent back to the Court of Appeals. It will be up to the district attorney's office to decide if the case should be retried.

It is possible that Blackwell could be released on bail pending his retrial. WRAL was unable to reach Durham District Attorney Jim Hardin for comment.